Illumina Pacific Biosciences: Full Text Decision
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Anticipated acquisition by Illumina, Inc. of Pacific Biosciences of California, Inc. Decision on relevant merger situation and substantial lessening of competition ME/6795/18 The CMA’s decision on reference under section 33(1) of the Enterprise Act 2002 given on 18 June 2019. Full text of the decision published on 19 July 2019. Please note that [] indicates figures or text which have been deleted or replaced in ranges at the request of the parties or third parties for reasons of commercial confidentiality. SUMMARY 1. Illumina, Inc. (Illumina) has agreed to acquire Pacific Biosciences of California, Inc. (PacBio) for approximately £930.2 million (the Transaction). Illumina and PacBio are together referred to as the Parties or the Merged Entity. 2. The Competition and Markets Authority (CMA) believes that it is or may be the case that each of Illumina and PacBio is an enterprise; that these enterprises will cease to be distinct as a result of the Transaction; and that the share of supply test is met. Accordingly, arrangements are in progress or in contemplation which, if carried into effect, will result in the creation of a relevant merger situation. 3. The Parties overlap in the supply of DNA sequencing systems on a worldwide basis. The CMA has found that the product frame of reference should include both short read and native long read technologies on the basis that the available evidence, including the majority of third party submissions, industry reports and many of the Parties’ internal documents, all indicated a material (and increasing) overlap between these technologies for at least some use cases. The evidence indicated in particular that read length is just one consideration taken into account by customers (along with 1 factors such as price, accuracy and throughput) when choosing between suppliers’ DNA sequencing systems, and that there is no clear-cut demand- side distinction between the two types of technology. The CMA has found that the geographic frame of reference is worldwide in scope. The CMA has therefore assessed the impact of the Transaction in the supply of DNA sequencing systems on a worldwide basis. 4. The CMA considered a horizontal unilateral effects theory of harm and examined the concern that the Transaction could adversely affect the prices of sequencing systems (including prices of both sequencing instruments and their related consumables), product quality and innovation. In assessing this theory of harm, the CMA considered the following evidence: (a) Shares of supply. The CMA has found that the Parties have a very high combined share of supply in relation to DNA sequencing systems ([90- 100%] in the UK and [80-90%] worldwide). Such high shares of supply prima facie raise competition concerns. While the vast majority of the Parties’ combined share is accounted for by Illumina’s existing very strong market position, the CMA also took into account, within the context of the dynamic nature of the market, the evidence that PacBio’s current share of supply does not accurately reflect its competitive significance following the launch of its Sequel II instrument in April 2019.1 (b) Closeness of competition between the Parties. The CMA has found that a significant number of the Parties’ internal documents indicate that the Parties monitor each other and view each other as close competitors. Along with the Parties’ internal documents, some third parties also told the CMA that they considered PacBio capable of becoming the strongest competitive constraint on Illumina as a result of the release of its Sequel II system. While the Parties submitted that [], the CMA found that the available evidence, while mixed, does not in the round support this position. (c) Competitive constraint of alternative suppliers. The CMA has found that the alternative suppliers currently available to customers (namely Thermo Fisher Scientific (Thermo Fisher), Beijing Genomics Institute (BGI),2 Qiagen N.V. (Qiagen), and Oxford Nanopore Technology (ONT)) 1 For the purposes of this Decision, references to PacBio’s Sequel II system will be taken to encompass its 8M chip as a component of that system. 2 Consistent with the approach taken by the Parties in their submissions, the CMA uses the name BGI to encompass both BGI and MGI (a subsidiary of BGI Group which specialises in the supply of sequencing instruments and sequencing reagents). 2 have low market penetration in comparison to Illumina and less well- developed [] offerings than PacBio. 5. The Parties identified a number of alternative suppliers that they suggested are poised to enter (or materially expand within) the DNA sequencing market within the next few years. The CMA found, however, that the barriers to successful entry and expansion were high and could be increased as a result of the Transaction, in particular because of the technical risks associated with the development of new sequencing technologies, barriers raised by IP rights, and the possibility that the Merged Entity could deploy a mixed bundling strategy to expand and entrench its market position post- Transaction. The CMA therefore concluded that it was not clear that the potential entry and/or expansion of the suppliers cited by the Parties would be timely, likely or sufficient to prevent a realistic prospect of a substantial lessening of competition (SLC) as a result of the Transaction.3 6. The CMA therefore believes that the Transaction gives rise to a realistic prospect of an SLC within a market or markets in the United Kingdom as a result of horizontal unilateral effects in relation to the supply of DNA sequencing systems worldwide. 7. The CMA is therefore considering whether to accept undertakings under section 73 of the Enterprise Act 2002 (the Act). The Parties have until 25 June 2019 to offer an undertaking to the CMA that might be accepted by the CMA. If no such undertaking is offered, then the CMA will refer the Transaction pursuant to sections 33(1) and 34ZA(2) of the Act. ASSESSMENT Parties Illumina 8. Illumina is a global genomics company that is publicly listed on the NASDAQ stock exchange. Illumina develops, manufactures and commercialises systems, consumables, bioinformatics and services used for genetic analysis worldwide. Illumina’s systems include second generation, short read DNA sequencing instruments based on its Sequencing by Synthesis (SBS)4 technology as well as DNA microarray scanners. 3 Merger Assessment Guidelines, from paragraph 5.8.1. 4 SBS technology is responsible for 90% of the world’s NGS sequencing. It is a multi-molecular approach to sequencing. 3 9. Illumina also provides product support services for its systems as well as genetic analysis services powered by its sequencing and microarray technologies. Illumina’s sequencing systems use consumables that include library preparation kits, sequencing kits and flow cells. The sequencing data that they produce is interpreted with specific bioinformatics software and applications.5 10. Illumina’s customers include a variety of government and not-for-profit genomic research institutes, academic institutions, hospitals, genomics centres as well as pharmaceutical, biotechnology, agrigenomics, clinical and diagnostic laboratories, and consumer genomics companies.6 11. Illumina’ turnover in 2017 was £2.1 billion, of which £[] was attributable to the UK.7 PacBio 12. PacBio is also a global genetics company that is publicly listed on the NASDAQ stock exchange. PacBio develops, manufactures and commercialises third generation, native long read8 DNA sequencing systems based on its Single Molecule, Real Time (SMRT) technology.9 PacBio’s long read systems run on proprietary consumables that include library preparation kits, sequencing kits and SMRT Cells commercialised by PacBio. The sequencing data produced is interpreted with bioinformatics tools provided by PacBio and by third parties. PacBio’s customers include government and not-for-profit genomic research institutes, genomics centres, pharmaceutical companies and agricultural companies. PacBio also provides product support services for its native long read sequencing systems.10 13. PacBio introduced its new Sequel system (Sequel II) on 24 April 2019 following a (reportedly-successful) early access program. Sequel II is based on the same underlying SMRT technology as previous PacBio sequencing 5 The term application is used in this Decision to refer to the broad category of uses that sequencing technology can be used for, for example, clinical, diagnostic, or agrigenomics applications. 6 Paragraphs 3 and 15 of the Parties’ merger notice submitted on 17 April 2019 (Merger Notice). 7 Paragraph 25 and Table 1 of the Parties’ Merger Notice. 8 The term native long read sequencing is used to differentiate PacBio’s technology (which generates single, contiguous long reads) from ‘linked long read’ or ‘associated short read’ solutions, such as that offered by 10x Genomics, which use barcoding techniques applied as part of the library preparation workflow to order and assemble short reads together to create an artificial long read. For the purposes of this Decision, the term ‘long read’ shall be used to mean native long read, unless indicated otherwise. 9 The Parties are both active in the supply of Next-Generation Sequencing (NGS) technologies. For this reason, this Decision focuses only on NGS (ie there is no discussion of first generation Sanger sequencing technologies) and therefore any references to DNA sequencing contained in this Decision should be understood as references to NGS only. 10 Paragraphs 4 and 16 of the Parties’ Merger Notice. 4 systems but now includes the SMRT Cell 8M chip which increases the number of potential observations (the number of DNA molecules analysed) from 1 million to 8 million, increasing output and reducing cost of sequencing considerably as a result.11 14. PacBio’s turnover in 2017 was £72.4 million, of which £[] was attributable to the UK.12 Transaction 15. On 1 November 2018, the Parties signed an Agreement whereby a wholly- owned direct subsidiary of Illumina will acquire 100% of the voting securities of PacBio.